Appeal from the Circuit Court of Winnebago County. a Minor Honorable Patrick L. Heaslip, Judge, Presiding. No. 07-JA-309
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justice McLaren concurred in the judgment and opinion.
Justice Hutchinson dissented, with opinion.
Respondent, Tracie G., appeals the trial court's June 30, 2010, order terminating her parental rights to minor Darius G.*fn1 Respondent argues on appeal that she received ineffective assistance of counsel and that the trial court's findings that she is unfit and that termination is in Darius's best interest are contrary to the manifest weight of the evidence.
For the following reasons, we agree with respondent's contention that she received ineffective assistance of counsel resulting from a per se conflict of interest when, during these proceedings, the same attorney from the public defender's office appeared on her behalf at one hearing but then subsequently appeared on Darius's behalf at another hearing. Accordingly, we reverse and remand.
A. Shelter Care and Permanency Review Hearings
On December 4, 2007, the State petitioned the trial court to find Darius a neglected minor under sections 2-3 and 2-4 of the Juvenile Court Act of 1987 (Juvenile Court Act). 705 ILCS 405/2-3(1)(a), 2-4(1)(a) (West 2006). That day, the court held a shelter-care hearing. Respondent was not present. The court appointed "Conflicts I" attorney Ryan Swift, from the "Conflicts Division of the Public Defender's office," to represent Darius. Swift informed the court that, based on the statement of facts presented to him by the State, he believed there existed probable cause to find neglect. The court found probable cause to find neglect and found that it was a matter of urgent and immediate necessity to place Darius in State custody with the Department of Children and Family Services (DCFS).
On December 12, 2007, respondent appeared for a shelter-care hearing, and the court appointed Robert Simmons of the public defender's office to represent her. Respondent provided the court with the identity of Darius's father, was advised by the court of the pending petition, and waived her right to the shelter-care hearing. Darius was placed in traditional foster care.
On March 20, 2008, respondent stipulated to the neglect petition. Darius was represented by Kristin Anderson (the reason for the change in attorneys is unclear from the record, but it appears that she, too, was a "conflicts" attorney), who agreed with the stipulation. The court accepted the stipulation, finding that a factual basis supported it. The court adjudicated Darius a neglected minor, and custody and guardianship remained with DCFS.
Thereafter, a series of permanency-review hearings were held to assess whether respondent was making reasonable progress toward the goal of returning Darius home to her care. At the first hearing, on September 8, 2008, respondent's former counsel, Simmons, appeared on behalf of Darius's father. Respondent's new counsel was Matthew Jura. Darius was represented by Kristin Anderson. Throughout the remaining permanency-review hearings, Darius was represented by Anderson while respondent was represented by Jura (March 10, 2009) and Erin Buhl (September 1 and October 20, 2009). (On September 29, 2009, Shannon Reeves-Rich requested on Buhl's behalf a continuance, which was granted.)
In sum, the evidence from these hearings reflected that respondent initially made reasonable progress but later attended only half of her scheduled visits with Darius (sometimes missing without explanation), was evicted from her apartment, was discharged from counseling for lack of attendance, and was unable to successfully complete a parenting class until the fourth time she enrolled. Ultimately, on October 20, 2009, the State argued that it had made reasonable efforts but that respondent had not. It requested that the goal be changed. On Darius's behalf, Anderson also requested that the goal be changed. The court agreed, finding that respondent did not make reasonable efforts toward Darius's return and changing the goal to substitute care pending a determination of parental rights.
B. Termination of Parental Rights
On November 24, 2009, the State petitioned for termination of parental rights and power to consent to an adoption, arguing that termination was appropriate because, pursuant to the Adoption Act (750 ILCS 50/1 et seq. (West 2008)), respondent was an unfit person in that she: (1) failed to maintain a reasonable degree of interest, concern, or responsibility for Darius's welfare (750 ILCS 50/1(D)(b) (West 2008)); (2) failed to protect Darius from conditions within his environment that were injurious to his welfare (750 ILCS 50/1(D)(g) (West 2008)); and (3) failed to make reasonable progress toward Darius's return to her during "any 9-month period after the end of the initial 9-month period following the adjudication of neglect or abuse" (750 ILCS 50/1(D)(m)(iii) (West 2008)).
That same day, respondent appeared before the court for arraignment on the petition. Respondent was represented by Mike Herrmann. Anderson continued to represent Darius. The court informed respondent of the petition's allegations, the bifurcated nature of the proceedings (unfitness followed by best interest), the State's burden of proof, and respondent's right to counsel and to present evidence on her own ...